Calvet & Johns
[2025] FedCFamC2F 128
•10 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calvet & Johns [2025] FedCFamC2F 128
File number(s): PAC 6678 of 2023 Judgment of: JUDGE MYERS Date of judgment: 10 February 2025 Catchwords: FAMILY LAW – interim parenting decision - one child aged 3 - whether the interim consent orders made on 2 April 2024 providing for the child to spend time with the father at a supervised contact centre should be discharged – whether the child should spend unsupervised time with the father progressing to one overnight each alternate weekend – whether amendments should be made to the father’s current alcohol and drug testing regime – where the court orders that the father’s time be increased but remain supervised – where the court declines to vary interim orders in place with respect to drug and alcohol testing for the father. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 65D(2), 65DAAA Cases cited: Bustillo & Bustillo [2024] FedCFamC1F 556
Fowler & Northwood [2022] FedCFamC1A 173
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286.
Division: Division 2 Number of paragraphs: 82 Date of hearing: 2 December 2024 Place: Parramatta Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Justice Family Lawyers Sydney Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Barkus Doolan Winning Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 6678 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CALVET
Applicant
AND: MS JOHNS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
10 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Order 2 of the Orders made on 2 April 2024 be discharged.
2.The child X born in 2021 (“X”) spend time with the father for not less than four (4) hours per fortnight with such time to be professionally supervised.
3.In addition to Order 2 above, X shall spend time with the father each alternate Wednesday supervised by B Centre at such time and during such hours as are made available by B Centre.
4.For the purpose of Order 2 above the father must within five (5) days of these Orders, nominate a professional supervision service that will supervise his time for four (4) hours per fortnight with such time to take place on such day and during such hours as are made available by the said professional supervision service.
5.The father shall be solely liable for the cost of the professional supervision service and also the costs of B Centre supervising his time with X.
6.That within seven (7) business days of the date of these Orders, the parties must do all acts and things and sign all documents, enrolment forms and undertake all intake procedures necessary so as to facilitate X’s time being supervised with the father in accordance with these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MYERS:
This is an Interim parenting decision in the matter of Calvet & Johns.
The matter came before the Court as a result of the father filing an Application in a Proceeding on 30 October 2024 in relation to the time the father spends with the parties’ daughter X born in 2021, currently aged 3 years.
BACKGROUND
For the purposes of giving the father’s application some context, it is worth recording the short history of the matter in the following paragraphs.
The parties commenced cohabitation in late 2020.
It appears uncontroversial that in 2021, the mother fell pregnant.
The parties’ relationship deteriorated in 2021, and they separated. The parties then reconciled just prior to the birth of X.
The father contends that a further separation occurred in late 2021 and that the parties further reconciled in late 2022.
The Court notes that the father suggests that final separation occurred in March 2023.
For the purposes of this interim decision, it is unimportant for the Court to make findings as to the actual date of commencement of the parties’ relationship and the date of reconciliations or final separation.
The parties’ relationship was on either parties’ version of events a short relationship. The Court notes that the mother and father make competing allegations of being subjected to family violence by the other.
It appears uncontroversial that in late 2023, the father was charged with an offence relating to an event that was alleged to have occurred in early 2023. At this time the father was served with a provisional Apprehended Domestic Violence Order (ADVO) identifying the mother and X as protected persons. The matter was listed for hearing in the Local Court in early 2024, where the matter was heard and the charge dismissed. It further appears uncontroversial that the father agreed to accept the Local Court making a Final ADVO for the protection of the mother on a without admissions basis. The Court notes that X was removed from the persons named in the ADVO as “protected persons”.
It is the father’s position that following separation he spent time with X as permitted by the mother and that this time occurred on an unsupervised basis until 15 November 2023. The father suggests that following this date the mother began withholding X from the father.
There seems little dispute that the father did not spend time with X between early November 2023 and 5 May 2024. The mother contends that this is despite her making numerous offers for the father to spend supervised time with X.
The father filed an Initiating Application to commence proceedings in the Federal Circuit and Family Court of Australia on 18 December 2023. The father sought Final Orders for unsupervised time with X on a week on week off basis.
The Court notes that on 19 March 2024 the Court Child Expert (‘CCE’), Ms C, released her Child Impact Report.
On 2 April 2024, Interim Orders were made by consent for X to live with the Respondent mother and spend supervised time each fortnight with the Applicant father at D Contact Centre for a period of up to 3 hours per fortnight.
In accordance with those Orders, the father has undergone hair follicle, CDT and urinalysis testing. The father submits that his testing results are consistently negative. The mother submits that they are not. She seeks to rely on an adversarial experts report as to the meaning of the father’s test results and submits that an issue at the Final Hearing will relate to whether the father’s test results show excessive alcohol use.
On 30 April 2024, an Interim Hearing was listed to take place before Senior Judicial Registrar Neilson. It is uncontroversial that on this date the matter did not proceed, and that Orders were made by consent for the continuation of the Orders made on 2 April 2024.
Pursuant to the Consent Orders made on 2 April 2024, on 5 May 2024 the father commenced spending supervised time with X fortnightly at D Contact Centre for 1.5 hours each alternate weekend. This continues to be the current arrangement.
On 16 August 2024, Dr E released her Single Expert Report.
On 3 October 2024, the proceedings were listed for a four (4) day Final Hearing before the Court commencing on 5 May 2025.
The father seeks Interim Parenting Orders as contained within his Minute of Order tendered in Court on 2 December 2024, and forming Exhibit ‘B’ in the proceedings, that provides:
(1)That Orders the Orders 2 to 7 of Judicial Registrar Weaver dated 2 April 2024 be discharged.
(2)That for a period of 4 weeks from the date of these Orders, the child spend time with the father from 9:00 AM to 2:00 PM each Saturday supervised by a professional supervision service.
(3)That for the purposes of Order 2, the parties share equally in the costs of supervision and the reports.
(4)That for a period of 6 weeks following the completion of Order 2, the child spend time with the father from 9:00 AM to 2:00 PM each Saturday supervised by the paternal grandmother, Ms F.
(5)For a period of 8 weeks following the completion of Order 4, the child spend time with the father from 9:00 AM to 4:00 PM each Saturday.
(6)Following the completion of Order 5, the child shall spend time with the father from 12:00 PM each alternate Saturday until 4:00 PM on Sunday.
(7)For the purposes of Orders 4 to 6, the changeover shall take place at B Centre, Suburb G utilising their supervised changeover service.
(8)For the purposes of Order 7, in the event B Centre, Suburb G are not available to supervised changeover, the parties shall attend upon B Centre, Suburb H for the purposes of changeover.
(9)For Christmas 2024, the child shall spend time with the father from 10:00 AM on Christmas Eve until 6.00 PM on Christmas Eve, supervised by the paternal grandmother.
(10)For the purposes of Order 9, changeover shall occur at J Shopping Centre, out the front of K Store, and for the purposes of those changeovers the father shall cause the paternal grandmother, Ms F, to attend on his behalf.
(11)That the father shall, 15 minutes prior to the commencement of, the midway point of and conclusion of his time with the child pursuant to Orders 2 to 6 and Order 9, undertake a breathalyser test using a personal breathalyser with smart phone capability and provide the results of same to the mother in the coparenting app within 1 hour of doing so.
(12)That in the first week of February 2025 and the second week in April 2025, following a written request from the Independent Children’s Lawyer, the father shall undergo a hair follicle ETG test and for the purposes of such testing:
(a)Shall not cut his hair shorter than 3 cm;
(b)Bleach, dye or treat his hair with any chemicals in any way;
(c)Provide the test results to the mother's solicitor and the ICL within 48 hours of receipt.
(13)Each parent or authorised contact person will communicate through a Co-Parenting App with the mother to choose between AppClose or 2houses.
(14)The father to pay the reasonable costs of the co-parenting application.
(15)Both parents shall keep each other informed of the child's medical providers and provide details of any new medical practitioners within 7 days of their engagement.
(16)This order authorizes any of the child's professional care providers (including doctors, dentists, specialists, hospitals, etc.) to release information regarding X's care, welfare, and development to both parents. Either parent may request documentation related to the child, with the requesting parent responsible for any associated costs.
(17)Each parent shall authorize the child's medical practitioners or health professionals to discuss the child’s health and medical treatment with the other parent.
(18)Each parent shall inform the other as soon as reasonably possible of any medical condition, significant health issue, or illness affecting the child and shall authorize the treating medical practitioner to provide relevant information to the other parent.
(19)In the event of a medical emergency requiring attention while the child is in the care of one parent:
(a)The parent with the child shall notify the other parent as soon as practicable.
(b)The other parent shall be provided with full details of the medical practitioner or facility involved as soon as practicable.
(20)Both parents are allowed to provide copies of any Court Orders to any school, daycare, or medical practitioner (including counsellors) that the child attends.
(21)Both parents are prohibited by injunction from speaking negatively about the other parent or members of the other parent’s family in the child’s presence or hearing and shall ensure the child is removed from the vicinity if anyone else does so.
(22)Each parent shall notify the other within 7 days of any change of address.
(23)Each parent shall notify the other within 7 days if any third party begins residing with the child.
(24)Unless otherwise agreed in writing, both parents are prohibited from relocating more than 60 km from Suburb L, NSW.
(25)That the applicant be permitted to rely on up to 12 pages of affidavit for this interim hearing.
(26)That the respondent mother pay the applicant father’s costs of and incidental to this application.
The Court notes that Senior Counsel for the father proposes two alternate positions as set out at paragraphs 63 and 69 of the father’s Written Submissions filed on 6 December 2024 that provides:
63. The Father submits that if the Court does not make Orders as sought by him, the Court would proceed to make Orders that increase him time with [X] to not less than 4 hours each week supervised by the first available Agency as outlined in the tender bundle of the Father marked as Exhibit A on 2 December 2024.
69. If the Court does not accept that the Mother has the capacity to contribute to the costs of supervision equally with the Father, the Father submits, solely for financial reasons, that the time should then occur for not less than 4 hours on a professional supervised basis fortnightly, and each alternate Wednesday with [B Centre].
The mother seeks the continuation of the Interim Consent Orders made on 2 April 2024 up until the Final Hearing suggesting that the Orders should be maintained as a means of promoting stability for X and to mitigate any risk to X given her account of family violence perpetrated by the father and her allegations of the father’s alcohol and drug abuse.
The Court notes the mother’s alternate position provided at paragraph 59 of her Written Submissions that provides:
59. The mother submits that if the Court is not minded making the Orders as sought by her, that in the alternate the Court shall consider the ICL's proposed minute of order as an appropriate interim proposal. As outlined above, the mother would also accept the father's alternate proposal at paragraph 69 of his submissions provided all costs are met by the father, which would result in the father spending not less than 4 hours on a supervised basis fortnightly, and each alternate Wednesday with [B Centre].
The Independent Children’s Lawyer’s (“ICL’s”) position is set out within the ICL’s Written Submissions filed on 16 December 2024 under heading “Benefit to [X] of having a relationship with both parents” that provides:
Since May 2024 the father has been spending 1.5 hours each alternate weekend with [X] at [B Centre]. The contact records indicate that [X] and the father are building a positive relationship. Consideration should be had that this relationship is limited to 1.5 hours each fortnight. The Independent Children’s Lawyer agrees with the submission made on behalf of the father that this arrangement is not sufficient to continue to develop the relationship between the father and [X]. However, the ICL cannot support a move to unsupervised time on an interim basis until the many factual disputes in this case are tested at final hearing. The Independent Children’s Lawyer supports the amount and frequency of time increasing. The Independent Children’s Lawyer agrees to the alternate positions as stated at paragraph 63 and 69 of the father’s written submissions.
What is obvious to the Court is that, despite it not being the parties’ primary positions, both parties and the ICL agree as to an alternate position as set out at paragraph 69 of the father’s Written Submissions that provides:
69. If the Court does not accept that the Mother has the capacity to contribute to the costs of supervision equally with the Father, the Father submits, solely for financial reasons, that the time should then occur for not less than 4 hours on a professional supervised basis fortnightly, and each alternate Wednesday with [B Centre].
The Court firstly considers the submissions made on behalf of the mother at paragraphs 22-24 of the mother’s Written Submissions filed on 13 December 2024 to the effect that the Court should not consider the father’s application at all. Those submissions provide:
22. The mother relies upon the recent Full Court authority of Bustillo and Bustillo [2024] FedCFamC1F 556 in support of her Response to the Father's Application in a Proceeding. The factual matrix of that decision reflects the same facts relevant to this case, with the father filing a second interim application on receipt of a single expert report.
23. Notably, these proceedings have be set down for a final hearing before His Honour commencing 5 May 2024 in just over 4 months' time and an Interim Hearing occurred on 30 April 2024 before Senior Judicial Registrar Neilson where Orders were made with the Consent of the Father for the continuation of the Orders made on 2 April 2024.
24. The father cannot point to any change in circumstance which would justify the revision of the Interim Orders. The only development within the proceedings was the release of the single expert report. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here, the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report. The only other change in circumstances is the production by the father or CDT test result that has a clear indication of excessive alcohol consumption, with this test result not being available to [Dr E] when she prepared her report. This would strengthen the position of the Court in dismissing the father's Application and acting with extreme caution in lifting supervision in any manner. It is objective evidence, and the father gives not explanation as to why the test result indicates excessive use of alcohol. The submissions filed on behalf of the father ignore this test result all together. The Court would not lift testing as requested by the father between now and the final hearing. To do so would result in there being a significant gap in the evidence at a final hearing. The Court could not place any weight upon the comments made by [Dr E] around testing, as she is not a toxicologist.
The Court turns to the decisions in Bustillo & Bustillo [2024] FedCFamC1F 556 and Fowler & Northwood [2022] FedCFamC1A 173.
Firstly, it should be noted that despite the suggestion by Counsel for the mother at paragraph 22 of the mother’s Written Submissions about Bustillo, the Court notes the decision is not a “recent Full Court” decision or proceedings, nor is it exactly a case where the “factual matrix of that decision reflects the same facts relevant to this case, with the father filing a second interim application on receipt of a single expert report”. Rather, Bustillo is a first instance Division 1 decision of Austin J. The factual matrix is not technically that of the determination of a “second interim application”, rather at paragraph 1 of his decision Austin J set out “These reasons explain the disposition of an application made by the mother to review interim parenting orders made by a senior judicial registrar (“the registrar”) on 23 July 2024”. The Court accepts that the history of the proceedings set out at paragraphs 8-13, in relation to which a hearing de novo took place, show that while the underlying facts are similar, they are not the same where in Bustillo:
8. The first set of interim parenting orders was made by the registrar between the parties, with their consent, in November 2022. Those orders were only intended to govern parenting arrangements until the parties’ competing interim parenting applications could be heard in February 2023 (Order 4).
9. In February 2023, following an interim hearing, the second set of interim parenting orders was made.
10. Thereafter, a single expert psychiatrist was appointed by procedural orders made in February 2023 and May 2023. The single expert’s report was released to the parties in March 2024. Shortly afterwards, at a court event in April 2024, the father foreshadowed making another application for interim parenting orders, in anticipation of which the dispute was listed for hearing before the registrar in July 2024…. The father subsequently filed his interim application, to which the mother responded.
13. The registrar heard the dispute on 3 July 2024 and delivered judgment several weeks later on 23 July 2024.
What Senior Counsel for the father correctly points out at paragraph 11 of the father’s Written Submissions is that this “matter can be distinguished from Bustillo in circumstances where the parties have not engaged in an interim hearing and the Court has not heard an interim hearing”.
The Court accepts and agrees with Austin J in Bustillo where he sets out at [46]:
Neither s 65D(2) nor s 65DAAA of the Act purports to place restrictions upon when interim parenting orders may be varied, but litigation should not be conducted by serial interlocutory skirmishes in the hope or expectation that, by process of attrition, one party might eventually submit to the will of the other. Interim hearings should only be conducted as and when necessary to make orders placing the family into a satisfactory holding pattern until the parenting arrangements which will govern their lives can be properly determined at final trial. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report.
Again, this case can be, and in the view of the Court is distinguished on the facts where the parties have not, prior to the determination of this well fought interim hearing, engaged in serial interlocutory skirmishes. Rather until the actual hearing of this interlocutory skirmish the parties have simply agreed to a set of Orders by consent.
The Court does not accept submissions made on behalf of the mother to the effect that the Court should not entertain the father’s application where he “cannot point to any change in circumstances which would justify the revision of the Interim Orders” as is suggested at paragraph 24 of the mother’s Written Submissions and particularly where s 65D(2) nor s 65DAAA of the Act purports to place any restrictions upon the Court as to when Interim Parenting Orders may be varied.
For the sake of completeness, the Court notes paragraphs [33]-[36] in the decision of Fowler & Northwood [2022] FedCFamC1A 173, where Austin J sitting alone in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction referred to the grounds of appeal and noted:
33. Grounds 2 and 4 were primarily argued on the premise that the principle in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 precluded the primary judge from varying the existing orders without any anterior finding of some material change in circumstances in the interregnum – of which there were allegedly none.
34. The argument is misconceived because both parties conducted the proceedings on the basis that circumstances had indeed materially changed since the last orders were made in June 2020. Each party now seeks the variation of those orders, which they can only do by contending the variations sought are warranted by changed circumstances. The mother commenced fresh proceedings by filing an Application in July 2021 seeking to constrict the time the children spend with the father under the existing orders, whereas the father filed a Response in October 2021 seeking orders to expand the amount of time the children spend with him, together with a host of other orders dealing with an assortment of other issues.
35. True it is, only the mother wanted the existing orders varied on an interim basis, but the father cannot take refuge behind an argument in the appeal that circumstances are unchanged when he maintains the countervailing application for substantially revised parenting orders. The issue between the parties therefore simply devolved to whether the changed circumstances justified an interlocutory variation of the existing orders or whether the decision about variation ought await the upcoming trial when all of the evidence is tested. There was no reason based in legal principle why the orders could not be varied on an interlocutory basis. Rather, that was a question the answer to which was governed by the evidence.
36. The hearing before the primary judge entailed the determination of the mother’s contested application for interim relief. Significantly, it was not a threshold hearing of an application made by the father to dismiss the mother’s pending application for fresh final relief due to an asserted inability to demonstrate any changed circumstances, consonantly with the principle in Rice and Asplund (Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 at [40]–[56]; Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 at [72]–[82]). The father could not sensibly make any such threshold application, given his own pending proposal for fresh final relief to vary existing orders.
The appeal decision in Fowler was made before the amendments to the Act came into effect on 6 May 2024. Following the amendments neither s 65D(2) or s 65DAAA of the Act place any restrictions on when interim parenting orders may be varied by the Court. As such, Fowler is not instructive to the Court as to whether it should entertain the father’s application, and again the Court does not accept submissions made on behalf of the mother to the effect that the Court should not entertain the father’s application where he “cannot point to any change in circumstances which would justify the revision of the Interim Orders” as is suggested at paragraph 24 of the mother’s Written Submissions.
APPLICABLE PRINCIPLES
The Court considers the legislative pathway noting that conduct of interim disputes is an “abridged process” in which the scope of the enquiry is “significantly curtailed” as is set out in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 at [68]. There is no cross-examination of parties or witnesses about what they allege in their Affidavits, and so where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of (one parties) submissions... judges are not required to treat all untested evidence as bearing the same weight.
Orders in respect of children are regulated by Part VII of the Family Law Act (“the Act”). A “parenting order” is defined at section 64B of the Act. Pursuant to s 65D(1), the Court may make such parenting order as it considers proper.
Pursuant to ss 60CA and 65AA, when making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration.
LEGISLATIVE PATHWAY
Subsection 60CC(1) of the Act provides that when determining what is in the child's best interests the Court must:
a.consider the matters set out in subsection (2); and
b.if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
The Court is not aware that X is an Aboriginal and/or Torres Strait Islander child.
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i. the child; and
ii. each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child.
In contemplating the foresaid matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence Order that currently applies or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
Subsection 60CC(2)(a)
The Court considers what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and the mother, who is X’s primary carer.
The Court is drawn towards the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such Order as to afford the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence Order previously or currently in place.
The Court notes that CCE, Ms C, prepared a Child Impact Report dated 18 March 2024 and that Dr E prepared a Single Expert Report on 16 August 2024.
In relation to family violence the Court notes that the father suggests that the mother was verbally and physically abusive towards him. The mother suggests that the father was verbally, physically, psychologically, and financially abusive towards her.
At paragraph 9 of the Child Impact Report, Ms C opines that X may have been exposed to family violence while living with the parents although the parents accounts differ as to the nature and extent of this. On the topic of exposure to family violence Dr E suggests in the Single Expert Report at paragraph 64 that it can be assumed that X was exposed to family violence at a very young age based on the police reports. However, there was no evidence of her feeling fearful in either parent’s care at observation.
While the father denies engaging in physical violence or having threatened the mother, Ms C records at paragraph 13 of the Child Impact Report that the father “acknowledged that there were times when they argued and that he said things he now wished he had not”.
Similarly, the mother denied the allegations of family violence that are made by the father towards her.
The Court notes that there are several disputed allegations of family violence made by each party towards the other. While some of the allegations are denied in completeness, in other cases the parties offer significantly different narratives of the same event.
The Court notes Ms C at paragraph 20 of the Child Impact Report as suggesting that the mother’s allegations regarding family violence are serious and that the father’s denial if false would be concerning, and as such there would be a decreased likelihood of him making any changes in the future.
At paragraph 19 of the Child Impact Report, Ms C opined that if the mother’s account had substance, then this conflict escalated to coercive and controlling violence. While if the father’s account had substance, then any violence was more mutual in nature.
On either party’s version of the events an incident occurred between the parties in 2021. The father suggests that the mother became angry and punched him in the face while the mother alleges that the father became angry at her because of worries she was having in relation to her pregnancy. The mother suggests that this fight escalated with the father becoming verbally abusive towards her and throwing an object towards her.
The mother suggests that in late 2021 the parties argued while the father was seated on the couch holding X. The mother further suggests that she went to take X from the father and when she did so the father refused and grabbed the mother’s wrist so firmly that it hurt. The mother alleges that she then bit the father’s finger to stop him hurting her. The mother further alleges that the father then lifted his foot and kicked her in her stomach where an unhealed wound was located.
The father by way of contrast suggests that he was on the lounge feeding X when the mother approached him, standing over him yelling. The father suggests that he felt threatened for both him and X. The father acknowledges he used his foot to push the mother away. The father alleges that the mother then jumped on him and punched him multiple times in the head. It seems agreed that as a result of the incident an ambulance was called.
The mother alleges that in early 2023 the parties were arguing about money. The mother alleges that the father pushed his hand against her back, grabbed her left arm and slammed her to the ground injuring her leg. The mother suggests that as a result of this incident she has a scar on her leg. The father alleges that it was the mother who became angry at him when talking about money. The father suggests that the mother got up close to his face and that in order to defend himself he pushed the mother back and said “get out of my face”. The father disputes that he pushed the mother hard enough for her to fall.
The Court, as set out above, notes that the father was later charged with offences as a result of this incident. It is not disputed that the father was acquitted of the offences after a trial although at a higher standard than that applied by this Court.
The Court notes that at paragraph 65 of the Single Expert Report, Dr E opines that given both parties’ reports of family violence as well as the police reports provided, it seems most likely that the violence was more mutual in nature.
At this stage in the proceedings where the evidence of the parties and opinion of Dr E is untested through cross-examination, the Court is not prepared to make findings, just simply accept one party’s version of the events over the other, or the opinion of Dr E who asserts that the family violence was likely mutual partner family violence.
Despite the Court being unprepared to make findings as to whether it accepts the father, the mother or Dr E’s position, there is no doubt in the mind of the Court that there was family violence, and that X was exposed to that family violence.
There is a controversy in the proceedings as to the father’s and the mother’s capacity to contribute towards the cost of supervision.
The father seeks in part to persuade the Court as to his limited capacity to pay for supervision relying on documents attached to his Written Submissions. Paragraph 64 and incorrectly numbered subparagraphs of the father’s Written Submissions make this point where the paragraph provides:
64. Attached and filed with these submissions are:-
63.1 His recent payslip that evidences his annual income of $115,000 per annum, or a net pay of $840 per; and
63.2 His residential tenancy agreement that evidences his rental payments of $580 per week.
Senior Counsel for the father conceded at paragraph 67 of the father’s Written Submissions that the mother’s financial statement does not support a contention that the mother can afford to contribute towards the cost of supervision. The documents that are attached to the father’s Written Submissions are not in and of itself evidence of any fact. The controversy with respect to the mother’s capacity to contribute towards the costs of supervision remains. Where the evidence of the parties’ is untested, the Court is not prepared to find that the mother has the capacity to contribute towards the costs of supervision of the father’s time with X. For the Court to just do so and hope for the best could see the father’s supervised time with X stopped as a consequence of the supervision service ceasing time where the mother fails to pay because she cannot in reality afford to do so. In this regard the Court does not accept that the order proposed by the father at paragraph 63 of his Written Submissions is an arrangement that would promote the safety of X and the mother where the Court does not find the mother has the capacity to contribute towards the cost of supervision.
As the Court is unable to make findings about essentially who did what to whom in the context of the family violence dispute, the Court finds that the most uncontroversial Order and the Order most likely to promote the safety of X and the mother is that proposed in the alternative being the Order referred to at paragraph 69 of the father’s Written Submissions that provides:
69. If the Court does not accept that the Mother has the capacity to contribute to the costs of supervision equally with the Father, the Father submits, solely for financial reasons, that the time should then occur for not less than 4 hours on a professional supervised basis fortnightly, and each alternate Wednesday with [B Centre].
As set out earlier, the Court notes the factual dispute between the parties about the father’s alleged drug use and alleged excessive use of alcohol. The factual dispute goes as far as the father suggesting that the testing regime is indicative of there being no use of drugs or excessive use of alcohol. The mother suggests that there is excessive alcohol use by the father.
At paragraph 92 of the Single Expert Report Dr E opines “that there is no functionally significant alcohol abuse issue or any current issue relating to drug use” by the father. The mother seeks to have Dr M appointed as an adversarial expert. The father objects to this. Dr M suggests that the father has drunk to excess on at least two occasions for a period of 2-4 weeks prior to testing, and that on one occasion the father’s urinalysis test result suggests a potential deliberate attempt to evade detection. At this stage in the proceedings the Court is not prepared to make a decision as to whether the mother may or may not rely upon Dr M’s evidence at the Final Hearing, nor is the Court prepared to make any findings as to the accuracy or otherwise of the opinions expressed by Dr E or Dr M where the evidence is untested by cross-examination. What is obvious to the Court is that there remains a live issue as to the father’s use of alcohol. The best way of putting in place an arrangement to promote the safety of the child and the mother is to leave in place the Orders that provide for ongoing testing of the father. The ICL summarises the argument in the case well, supporting the Court’s position where it was submitted in the ICL’s Written Submissions that:
There is considerable factual dispute and difference of opinion on this issue. The issue of the father’s drug and alcohol use and any impact it has on his capacity to parent [X] will be settled at final hearing. It will be a matter of the court.
There is a suggestion by the father that the paternal grandmother could supervise his time with X. The Court notes the complaints against the paternal grandmother supervising the father’s time as set out at paragraphs 32-35 of the mother’s Written Submissions. Given the level of complaint in this matter by the mother the Court finds that the likelihood of the paternal grandmother being involved as a supervisor is unlikely to calm the matter down or elicit at the Final Hearing in May 2025 independent evidence, for instance as to the nature of the father’s relationship with X or the father’s capacity to provide for X’s developmental, psychological, emotional and cultural needs. This type of evidence would be useful at a Final Hearing to assist the Court in its consideration of the father’s capacity particularly where the father will likely seek an order that the parties share parental responsibility for X. The issue of the paternal grandmother’s capacity to mitigate risk is further complicated by the fact that the paternal grandmother has not deposed to any evidence in an Affidavit in these proceedings.
The Court notes at this juncture, paragraph 23 of the Child Impact Report where Ms C provides the recommendation that supervised time remain in an environment that is protective of the mother and suggests that a supervision service may meet this requirement.
As such, the Court finds that the Order most likely to promote the safety of X and the mother that is uncontroversial is that Order supported by the parties although in the alternative as set out at paragraph 69 of the father’s Written Submissions.
The Court notes the submission made on behalf of the mother at paragraph 37 of her Written Submissions that provides:
The Court would be concerned about protecting the mother's psychological and emotional wellbeing given her diagnosis of PTSD and the impact the family violence has had upon the mother. To subject her to a regime of supervision involving the father's mother would cause the mother's anxiety to be heightened and this is not in [X]'s best interests. The mother is [X]'s primary carer and her role in that respect needs to be protected.
It appears uncontroversial that Dr N, psychiatrist has diagnosed the mother with PTSD. The Court notes that at paragraph 30 of the Single Expert Report Dr E opines that the mother’s presentation at the interview suggests that she would no longer meet the criteria for this diagnosis. Dr E is recorded at paragraph 37 of the Single Expert Report as stating that the subpoena records suggest another mental health condition.
As set out earlier in this decision Dr E’s report is untested through cross-examination and as such the Court is not prepared to make findings as to the accuracy of Dr E’s opinion. The mother has sought to rely on an Affidavit of Dr O which provides a further opinion in relation to the mother’s mental health. The father objects to the mother relying on that Affidavit. The Court is not prepared to make a decision at this point in the proceedings as to whether Dr O’s evidence can be relied upon by the mother at the Final Hearing. Just as Dr E’s evidence in the form of the Single Expert Report has not been tested so too Dr O’s evidence has not been tested. The Court is not prepared to make findings about either of Dr E’s or Dr O’s opinions beyond finding that there is a real issue in relation to the mother’s mental health that will need to be determined at the Final Hearing in May 2025.
In the context of protecting the mother’s mental health and promoting the safety of X and the mother the Court finds the Order best able to achieve the best result is the Order set out at paragraph 69 of the father’s Written Submissions as that Order is uncontroversial because it is supported by the parties as an alternate position and supported by the ICL.
Subsection 60CC(2)(b)
X is too young to provide any views that the Court would give any weight.
Subsection 60CC(2)(c)
There is nothing in the evidence of the parties that would give rise to the Court needing to make Orders or specifically take into account X’s developmental, psychological, emotional and cultural needs. In other words, X’s developmental, psychological, emotional and cultural needs are unremarkable and no different to those of the ordinary child of her age.
Subsection 60CC(2)(d)
The Court does not propose to make Orders in favour of the father allocating him parental responsibility at this time. The Court, for the moment, is satisfied as to the mother’s capacity (where she has parental responsibility for X) to provide for X’s developmental, psychological, emotional and cultural needs.
Subsection 60CC(2)(e)
The Court considers the benefit to X of being able to have a relationship with both of her parents. The mother does not dispute that X would benefit from having a relationship with the father, however the mother and ICL submit that such time should be supervised in order to mitigate any issues of risk or safety. Importantly, as previously stated, both parties (despite it not being the parties’ primary position) and the ICL ultimately support the Court making Orders in accordance with that Order proposed in the alternative at paragraph 69 of the father’s Written Submissions. The Court notes the submissions of the ICL well captures the issue of the importance of increasing time where the time between X and the father is limited. Those submissions provide as follows:
Since May 2024 the father has been spending 1.5 hours each alternate weekend with [X] at [B Centre]. The contact records indicate that [X] and the father are building a positive relationship. Consideration should be had that this relationship is limited to 1.5 hours each fortnight.
The Independent Children’s Lawyer agrees with the submission made on behalf of the father that this arrangement is not sufficient to continue to develop the relationship between the father and [X]. However, the ICL cannot support a move to unsupervised time on an interim basis until the many factual disputes in this case are tested at final hearing.
The Independent Children’s Lawyer supports the amount and frequency of time increasing. The Independent Children’s Lawyer agrees to the alternate positions as stated at paragraph 63 and 69 of the father’s written submissions.
Subsection 60CC(2)(f)
There is nothing else that in the view of the Court is relevant to the particular circumstances of the child.
CONCLUSION
Interim Orders will be made in accordance with the reasons set out above and are contained at the beginning of this judgment.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 10 February 2025
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